For Section 337 cases at the ITC, Brattle provides the advantageous combination of deep institutional knowledge and diverse industry experience with rigorous and innovative financial, accounting, and economic analysis. We have extensive experience working on these fast-paced, high-stakes cases and have handled the full range of economic issues across a variety of industries.
Economists at Brattle are thought leaders in the area of Section 337 litigation with several publications that apply economic principals to policy objectives to further clarify how the ITC can further its intellectual property policy objectives. As a result of our policy conscious approach, our rigorous and innovative economic analyses have played a key role in numerous high-profile cases and landmark decisions.
We have assisted counsel for leading technology companies, including Samsung, Apple, Intel, Hewlett Packard, Nokia, Sony, Macronix, and Garmin. Our analyses have covered numerous products, including heavy machinery, semiconductors, flash memory devices, liquid crystal display panels, navigation devices, and medical devices, as well as consumer products such as refrigerators, televisions, smartphones, Blu-ray players, computers, and automobiles.
Under Section 337, temporary relief may be granted to a party to “the same extent as preliminary injunctions and temporary restraining orders may be granted under the Federal Rules of Civil Procedure” (19 U.S.C. § 1337(e)(3)). In order to obtain temporary relief, a party must show (1) a reasonable likelihood of success on the merits, (2) irreparable harm caused if relief is not granted, (3) that the balance of hardships is tipping in the requesting party’s favor, and (4) that the public interest does not preclude issuance of relief.
A primary distinction between Temporary Exclusion Order (TEO) investigations and other Section 337 investigations is the irreparable harm analysis. As its name implies, irreparable harm cannot be cured by a remedy after trial. Such inquiries require an understanding of the nature of competition between the plaintiff’s and the defendant’s products. Brattle’s team of experienced industrial organization economists and damages experts has significant experience in Section 337 TEO investigations and other injunction matters.
Additionally, antitrust claims related to imported goods may be addressed. The Brattle Group’s significant antitrust and intellectual property expertise can be helpful in such engagements.
As a trade statute, in order to be entitled to relief under Section 337, the complainant must establish that a domestic industry for articles protected by the asserted patent(s) exists or is in the process of being established as demonstrated by significant investment in either plant and equipment or labor or capital, or substantial investment in the exploitation of the intellectual property, including engineering, research and development, or licensing. Given that these factors are discrete, satisfaction of any one of them is sufficient to meet the domestic industry requirement.
The Commission’s decision in Certain Multimedia Display and Navigation Devices and Systems, Components Thereof, and Products Containing Same (Inv. No. 337-TA-694) (“Multimedia Display Decision”) addressed the extent to which a complainant can establish a domestic industry based solely on U.S. investments in licensing. The Brattle Group represented the complainants in this matter and, as a result, has in-depth knowledge of the decision and the impact it will have on litigation at the ITC.
Our team has conducted rigorous economic and financial analyses to evaluate whether a complainant’s investments are sufficient to establish that a domestic industry exists. The Brattle Group has worked on behalf of both complainants and respondents.
Public interest factors can override the finding of a violation of Section 337 at the ITC. Upon finding a violation, the ITC considers the impact that exclusion orders would have upon 1) the public health and welfare, 2) competitive conditions in the U.S. economy, 3) the production of like or directly competitive articles in the U.S., and 4) U.S. consumers. The ITC weighs these factors against the public interest in protecting U.S. intellectual property rights by excluding infringing imports.
Given the changing economic environment in the U.S., economists must help the ITC find a more useful economic framework that addresses the loss to competition and welfare of a significant, albeit not singular, supplier in a multi-competitor market, including more creative ways to tailor a remedy to the situation. We have assisted our clients in addressing these issues using in-depth research, innovative economic modeling, and financial analysis.
While Section 337 investigations at the ITC mostly involve claims regarding intellectual property rights, other forms of unfair competition involving imported goods, such as misappropriation of trade secrets, breach of contract, and false advertising, may also be asserted. The formal domestic industry requirement for ITC complainants in statutory intellectual property investigations does not apply to non-statutory intellectual property, such as trade secrets, common law trademark, breach of contract, and false advertising, amongst others. Instead, the statute's subsection governing non-statutory intellectual property applies to only one of the following three sub-provisions: (i) to destroy or substantially injure an industry in the United States; (ii) to prevent the establishment of such an industry; or (iii) to restrain or monopolize trade and commerce in the United States.
Economists at Brattle have significant experience in evaluating economic issues in non-statutory intellectual property investigations. Brattle economists assisted complainant Manitowoc in Certain Crawler Cranes and Components Thereof (Inv. No. 337-TA-887) to demonstrate injury to the domestic industry from misappropriation of trade secrets by the respondent, Sany. The ALJ granted a motion for summary determination, finding that Manitowoc had shown that actions by Sany had injured or threated to injure the domestic crawler crane industry. In its opinion, the Commission affirmed related parts of the ALJ’s ID and issued a cease and desist order against Sany with respect to the asserted trade secrets for 10 years.
The Brattle Group has provided expert testimony and assisted clients in evaluating the nature and scope of the remedy sought, including whether downstream products containing infringing articles should be excluded as part of any remedy based on evaluation of factors set out in the Certain Erasable Programmable Read-Only Memories (EPROMs) case; the propriety and scope of cease and desist orders; and propriety and amount of bond.
Brattle assisted counsel for Sizewise et al. as respondent in an investigation concerning air mattress systems. We submitted an expert report analyzing the propriety and scope of a cease and desist order, propriety and amount of bond, and the four public interest factors to evaluate the impact of the proposed remedy on certain medical products. A Brattle economist provided deposition and hearing testimony at the ITC.
We assisted counsel for complainant, Jawbone, to evaluate economic injury to the domestic industry from alleged misappropriation of trade secrets by the respondent, Fitbit. We submitted an expert report evaluating the extent to which alleged misappropriation of trade secrets by Fitbit had led to or were likely to lead to economic injury to the domestic industry for activity tracking devices. A Brattle economist provided deposition and hearing testimony at the ITC.
On behalf of respondents, Nokia, Sony, Samsung, and ZTE, Brattle economists prepared an expert report evaluating Pragmatus’ alleged domestic investments in exploiting the asserted patents, particularly in light of the Multimedia Display Decision.
Brattle economists assisted counsel for complainant, Manitowoc, in an investigation concerning crawler cranes. We submitted an expert report evaluating Manitowoc’s domestic investments related to the asserted patents and the extent to which misappropriation of trade secrets by the respondent, Sany, had led to or were likely to lead to loss of sales, revenue and market position, damage to reputation and price erosion within the domestic industry for crawler cranes. The ALJ granted a motion for summary determination, finding that Manitowoc had shown that actions by Sany had injured or threated to injure the domestic crawler crane industry. In its opinion, the Commission affirmed related parts of the ALJ’s ID and issued a cease and desist order against Sany with respect to the asserted trade secrets for 10 years.
Brattle economists assisted counsel for Samsung as respondent in an investigation concerning electronic devices. We submitted a rebuttal expert report evaluating Ericsson’s alleged domestic investments in exploiting the asserted patents, in light of the Multimedia Display Decision.
On behalf of respondents, Intel, HP, and Apple, over patents related to energy-conditioning architecture for microprocessors, Brattle prepared an expert report analyzing the four public interest factors to evaluate the impact of the proposed remedy on the U.S. public interest. Nobel Prize Laureate Dr. Joseph E. Stiglitz provided an expert report as well as deposition and hearing testimony in this matter.
Counsel for Garmin, the respondents in this case, retained Brattle to evaluate the economic prong of the domestic industry requirement. We submitted a rebuttal report evaluating the complainant, Pioneer’s, investment in exploiting the asserted patents. In this landmark decision, the ITC determined that Pioneer’s U.S. licensing activities were insufficient to establish domestic industry and terminated the investigation with a finding of no violation by Garmin.
Brattle was retained by respondent Qualcomm during the Presidential Review period to analyze the economic effects of the exclusion order issued by the ITC banning the importation of all new wireless broadband handset models that contained Qualcomm chipsets infringing Broadcom’s asserted patents. Nobel Laureate and Brattle Principal Daniel McFadden and Berkeley Adjunct Professor Glenn Woroch submitted a paper analyzing the same.
Brattle economists assisted counsel for Macronix as complainant and respondent, respectively, in investigations concerning non-volatile memory, such as Flash memory. We prepared and submitted several direct and rebuttal expert reports evaluating domestic investments related to the asserted patents, EPROMs factors to determine whether the proposed remedy should be extended to downstream products, nature of remedy, propriety and scope of cease and desist orders, propriety and amount of bond, and impact of any remedial orders on the U.S. public interest. A Brattle economist provided deposition testimony.
Complex business and legal matters require intellectually honest and analytically rigorous solutions that are thoughtfully developed and clearly communicated. We apply economic and finance principles with uncompromising quality to achieve clarity in the face of complexity. Independent analysis, responsive execution, and compelling presentation. That’s Brattle. That’s the Power of Economics.